The fiefs were soon rendered transferable to strangers as a patrimonial estate. This gave rise to the right of lord's dues, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions became general, they were fixed in every district.
The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line.207 The most general custom had fixed it to one year's income. This was burdensome and inconvenient to the vassal, and affected in some measure the fief itself, It was often agreed in the act of homage that the lord should no longer demand more than a certain sum of money for the redemption, which, by the changes incident to money, became afterwards of no manner of importance.208 Thus the right of redemption is in our days reduced almost to nothing, while that of the lord's dues is continued in its full extent. As this right concerned neither the vassal nor his heirs, but was a fortuitous case which no one was obliged to foresee or expect, these stipulations were not made, and they continued to pay a certain part of the price.
When the fiefs were for life, they could not give a part of a fief to hold in perpetuity as a rear-fief; for it would have been absurd that a person who had only the usufruct of a thing should dispose of the property of it. But when they became perpetual, this was permitted.209 with some restrictions made by the customs, which was what they call dismembering their fief.210
The perpetuity of feudal tenures having established the right of redemption, the daughters were rendered capable of succeeding to a fief, in default of male issue. For when the lord gave the fief to his daughter, he multiplied the cases of his right of redemption, because the husband was obliged to pay it as well as the wife.211 This regulation could not take place in regard to the crown, for as it was not held of any one, there could be no right of redemption over it.
The daughter of William V, Count of Toulouse, did not succeed to the county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and the right of the succession of females seemed so well established in those days, that Louis the Young, after his divorce from Eleanor, made no difficulty in restoring Guienne to her. But as these two last instances followed close on the first, the general law by which the women were called to the succession of fiefs must have been introduced much later into the county of Toulouse than into the other provinces of France.212
The constitution of several kingdoms of Europe has been directed by the state of feudal tenures at the time when those kingdoms were founded. The women succeeded neither to the crown of France nor to the empire, because at the foundation of those two monarchies they were incapable of succeeding to fiefs. But they succeeded in kingdoms whose foundation was posterior to that of the perpetuity of the fiefs, such as those founded by the Normans, those by the conquests made on the Moors, and others, in fine, which were beyond the limits of Germany, and in later times received in some measure a second birth by the establishment of Christianity.
When these fiefs were at will, they were given to such as were capable of doing service for them, and, therefore, were never bestowed on minors; but when they became perpetual, the lords took the fief into their own hands, till the pupil came of age, either to increase their own emoluments, or to train the ward to the use of arms.213 This is what our customs call the guardianship of a nobleman's children, which is founded on principles different from those of tutelage, and is entirely a distinct thing from it.
When the fiefs were for life, it was customary to vow fealty for a fief; and the real delivery, which was made by a sceptre, confirmed the fief, as it is now confirmed by homage. We do not find that the counts, or even the king's commissaries, received the homage in the provinces; nor is this ceremony to be met with in the commissions of those officers which have been handed down to us in the Capitularies. They sometimes, indeed, made all the king's subjects take an oath of allegiance;214 but so far was this oath from being of the same nature as the service afterwards established by the name of homage, that it was only a cere-money of less solemnity, occasionally used, either before or after that act of obeisance; in short, it was quite a distinct thing from homage.215
Th, e counts and the king's commissaries further made those vassals whose fidelity was suspected give occasionally a security, which was called firmitas,216 but this security could not be an homage, since kings gave it to each other.217
And though the Abbot Suger218 makes mention of a chair of Dagobert, in which according to the testimony of antiquity, the kings of France were accustomed to receive the homage of the nobility, it is plain that he expresses himself agreeably to the ideas and language of his own time.
When the fiefs descended to the heirs, the acknowledgment of the vassal, which at first was only an occasional service, became a regular duty. It was performed in a more splendid manner, and attended with more formalities, because it was to be a perpetual memorial of the reciprocal duties of the lord and vassal.
I should be apt to think that homages began to be established under King Pepin, which is the time I mentioned that several benefices were given in perpetuity, but I should not think thus without caution, and only upon a supposition that the authors of the ancient annals of the Franks were not ignorant pretenders,219 who in describing the fealty professed by Tassillon, Duke of Bavaria, to King Pepin, spoke according to the usages of their own time.220
34. The same Subject continued. When the fiefs were either precarious or for life, they seldom bore a relation to any other than the political laws; for which reason in the civil institutions of those times there is very little mention made of the laws of fiefs. But when they became hereditary, when there was a power of giving, selling, and bequeathing them, they bore a relation both to the political and the civil laws. The fief, considered as an obligation of performing military service, depended on the political law; considered as a kind of commercial property, it depended on the civil law. This gave rise to the civil regulations concerning feudal tenures.
When the fiefs became hereditary, the law relating to the order of succession must have been in relation to the perpetuity of fiefs. Hence this rule of the French law, estates of inheritance do not ascend,221 was established in spite of the Roman and Salic laws.222 It was necessary that service should be paid for the fief; but a grandfather or a great-uncle would have been too old to perform any service; this rule thus held good at first only in regard to the feudal tenures, as we learn from Boutillier.223
When the fiefs became hereditary, the lords who were to see that service was paid for the fief, insisted that the females who were to succeed to the feudal estate, and I fancy sometimes the males, should not marry without their consent; insomuch that the marriage contracts became in respect to the nobility both of a feudal and a civil regulation.224 In an act of this kind under the lord's inspection, regulations were made for the succession, with the view that the heirs might pay service for the fief: hence none but the nobility at first had the liberty of disposing of successions by marriage contract, as Boyer225 and Aufrerius226 have observed.
It is needless to mention that the power of redemption, founded on the old right of the relatives, a mystery of our ancient French jurisprudence I have not time to unravel, could not take place with regard to the fiefs till they became perpetual.
Italiam, Italiam . . .227
I finish my treatise of fiefs at a period where most authors commence theirs.
1. Gregory of Tours, iv. 42.
2. Chapter 7.
3. Fredegarius, Chronicle, 42.
4. Clotharius II, son of Chilperic, and the father of Dagobert.
5. Fredegarius, Chronicle, 42.
6. See Gregory of Tours, viii. 31.
7. Fredegarius, Chronicle, 27, in the year 605.
8. Ibid., 28, in the year 607.
9. Ibid., 41, in the year 613.
10. Ibid., 42, in the year 613.
11. Some time after Brunehault's execution, in the year 615. See Baluzius's edition of the Capitularies, p. 21.
12. Ibid., art. 16.
14. Ibid., art. 17.
15. Ibid., art. 1.
16. Ibid., art. 8.
17. Ibid., art. 9.
18. Ibid., art. 21.
19. They were orders which the king sent to the judges to do or to tolerate things contrary to law.
20. See Gregory of Tours, iv, p. 227. Both our history and the charters are full of this; and the extent of these abuses appears especially in Clotharius' constitution, inserted in the edition of the Capitularies made to reform them. Baluzius's edition, p. 7.
21. Ibid., art. 22.
22. Ibid., art 6.
23. Ibid., art. 18.
24. In Baluzius's edition of the Capitularies, i. p. 7.
25. In the preceding book I have made mention of these immunities, which were grants of judicial rights, and contained prohibitions to the regal judges to perform any function in the territory, and were equivalent to the erection or grant of a fief.
26. He began to reign towards the year 670.
27. See the Life of St. Leger.
28. Instigante Brunihault, Theodorico jubente, &c. — Fredegarius, 27, in the year 605.
29. Gesta regum Francorum, 36.
30. See Fredegarius, Chronicle, 54, in the year 626, and his anonymous continuator, 101, in the year 695, and 105, in the year 715. Aimoin, iv. 15, Eginhard. Life of Charlemagne, 48. Gesta regum Francorum, 45.
31. See the Law of the Burgundians, pref., and the second supplement to this law, tit. 13.
32. See Gregory of Tours, ix. 36.
33. Fredegarius, Chronicle, 44, in the year 626.
34. Fredegarius, Chronicle, 68, in the year 630.
35. Fredegarius, Chronicle, 75, in the year 632.
36. Fredegarius, Chronicle, 79, in the year 638.
38. Ibid., 80, in the year 639.
39. Fredegarius, Chronicle, 89, in the year 641.
41. De Majoribus Domus Regi?.
42. De Moribus Germanorum, 7.
43. See Sulpicius Alexander, in Gregory of Tours, ii.
44. In the year 552.
45. Agathias, i. Gregory of Tours, iv. 9.
46. Gontram did not even march against Gondovald, who styled himself son of Clotharius, and claimed his share of the kingdom.
47. Sometimes to the number of twenty. See Gregory of Tours, v. 27, viii. 28 and 30, x. 3. Dagobert, who had no mayor in Burgundy, observed the same policy, and sent against the Gascons ten dukes and several counts who Lad no dukes over them. — Fredegarius, Chronicle, 78, in the year 636.
48. Gregory of Tours, viii. 30, and x. 3.
49. Ibid., viii. 30.
50. See the second supplement to the law of the Burgundians, tit. 13, and Gregory of Tours, ix. 36.
51. See the Annals of Metz, years 687 and 688.